Washington Federal Court Declines to Expand Stillaguamish Fishing Territory

Here are the materials in United States v. Washington, subproceeding 17-03 (W.D. Wash.):

Prior posts here, here, and here.

Judge Martinez Orders Trial in Stillaguamish U&A Subproceeding

Skagit canoes pulled up onto beach near Coupeville, Whidbey Island Washington, ca. 1895

Here are the new materials in United States v. Washington, subproceeding 17-03 (W.D. Wash.):

170 Stillaguamish Motion

174 Upper Skagit Motion

176 Tulalip Motion

178 Stillaguamish Motion re Laches

179 Swinomish Motion

191 Upper Skagit Response to 170

193 Stillaguamish Response to 179

194 Stillaguamish Response to 176

195 Stillaguamish Response to 174

198 Swinomish Response to 170

200 Tulalip Response to 170

204 Upper Skagit Reply in Support of 174

205 Tulalip Reply in Support of 176

206 Stillaguamish Reply in Support of 170

207 Swinomish Reply in Support of 179

Three Tribes Withdraw Laches as a Defense in US v. Washington Subproceeding 17-03

Here are the notices of withdrawal of laches as a defense in United States v. Washington subproceeding 17-03 (W.D. Wash.):

Sub 17-03 Swinomish Indian Tribal Community Notice of Withdrawal of Laches Defense 011921

Sub 17-03 The Tulalip Tribes Withdrawal of Laches Defense 011921

Sub 17-03 Upper Skagit Indian Tribe Withdrawal of Laches Defense 011921

Prior posts here and here.

As I wrote in 2015, I see this as a good thing — the possibility that the laches defense could be used against tribal treaty rights has hung like a smoggy haze over Indian country ever since 2005. It staggers me to think that tribes would do this to themselves for short-term, and probably illusory, gain.

Stillaguamish Marine U&A Allowed to Proceed [U.S. v. Washington Subproceeding 17-03]

Here are the materials in United States v. Washington [subproceeding 17-03] or Stillaguamish Tribe of Indians v. State of Washington (W.D. Wash.):

60 Motion for Reconsideration of Contempt Motion

61 DCT Order Denying Reconsideration

64 Upper Skagit MTD

65 Tulalip MSJ

66 Swinomish MTD

69 Sauk-Suiattle Response

70 Jamestown & Port Gamble Response

72 Muckleshoot Response

73 Hoh Response

74 Stillaguamish Response to 65

75 Stillaguamish Response to 64 & 66

84 Skagit Reply

85 Swinomish Reply

86 Swinomish Reply

87 Tulalip Reply

91 DCT Order Denying Motions

Prior post here.

Materials (so far) in Stillaguamish U&A Subproceeding

Here are the materials in United States v. Washington subproceeding 17-03 (W.D. Wash.):

1 Motion for Leave

3 DCT Order Granting Request

4 Stillaguamish Request for Determination

47 Stillaguamish Motion for Contempt

54 Tulalip Response

55 Swinomish Response

56 Stillaguamish Reply

59 DCT Order Denying Motion for Contempt

In-House Tribal Attorney Posting: Stillaguamish Tribe


The Stillaguamish Tribe of Indians, a sovereign, federally-recognized Tribe, is looking to hire an in-house Tribal Attorney with a minimum of three years’ experience in federal Indian law, to serve the Tribe as it collectively defines its future for generations to come.

The in-house legal work is very diverse and challenging, but the primary focus of this position will be on employment law in Indian Country, commercial transactions, Indian Gaming, Tribal economic development, and realty.
The Tribe is looking for someone with excellent people skills and the ability to work collegially, flexibly and creatively. An interest in conflict transformation and alternative dispute resolution would be a plus. A strong ethical character and an egalitarian willingness to work hard as part of a small legal department team is important. A sense of humor, a flexible temperament, a practical sensibility, creativity and intellectual and philosophical curiosity are also highly desired!

Indian preference will be exercised in the hiring of this position in accordance with the Tribe’s Personnel Policies.

APPLICATION: The Tribe would like to hire someone for this position as soon as possible, but will take the time it needs to find the right candidate. Please submit the following:
Application for Employment (you may request this application on the Stillaguamish Tribe of Indians website: http://www.stillaguamish.com/)
Cover letter including salary requirements.
Résumé or CV with the names of at least three professional references.
Legal writing sample.

Please send the above to Human Resources at the Stillaguamish Tribe of Indians, PO Box 277, Arlington, WA 98223 and a copy addressed to the Director, Stillaguamish Tribe of Indians Legal Department, PO Box 277, Arlington, WA 98223. Phone: Human Resources Department at 360-652-7362.

Washington Appellate Court Rejects Tribal Immunity in Land Case

Here is the opinion in Smale v. NORTEP, a Washington Court of Appeals (Div. 1) case involving the Stillaguamish Tribe. Here is an excerpt:

The Smales sought to quiet title to property they claimed they had acquired through adverse possession and named Noretep, the original non-Indian owners, as defendants. After the Smales sued, Noretep deeded the disputed property to the Stillaguamish Tribe of Indians (the Tribe), and the Smales named the Tribe as a defendant. In its unsuccessful motion to dismiss, the Tribe claimed that tribal sovereign immunity deprived the superior court of subject matter jurisdiction. Because courts exercise in rem jurisdiction over the property subject to quiet title actions, our Supreme Court has held that transferring the disputed property to a tribal sovereign does not bar the continued exercise of subject matter jurisdiction over the property. Accordingly, we hold that the superior court’s continuing jurisdiction over the land claimed by the Smales for the purposes of determining ownership does not offend the Tribe’s sovereignty.

ICT Editorial on Carcieri

From ICT:

Decision’s in. ‘Now’ begins work to fix Carcieri

The Supreme Court’s Feb. 24 decision in Carcieri v. Salazar is a significant defeat for the Narragansett Tribe, and perhaps for hundreds of other Indian tribes not federally recognized in 1934. Carcieri seemingly overturns the Department of Interior’s 70-year-plus practice of taking land into trust for Indian tribes federally recognized after 1934. But while the decision will be disruptive and expensive for Indian tribes affected, it might not be utterly devastating.

Carcieri held that the secretary has no authority to take land into trust for the Narragansetts because they are not an eligible Indian tribe as defined by the 1934 Indian Reorganization Act. Only tribes that meet the definition of “Indian tribe” under the IRA are eligible for the fee to trust benefit; in other words, according to the court, tribes that were “under federal jurisdiction” on June 1, 1934. The secretary of the interior did not recognize the Narragansett Tribe as an Indian tribe at that time, and so the court held that the secretary may not take land into trust for the tribe under the IRA. The court’s cramped reading of “now” is the worst kind of judicial formalism, like that recently critiqued by Professor Alex Skibine in the American Indian Law Review.

It is important to parse out exactly which tribes – and which land parcels – are affected by this decision. First, Indian lands already in trust with the secretary of the interior are safe, because the United States already owns the land and is immune from a suit seeking to reverse a fee to trust acquisition. That means tribes operating business enterprises on trust land will be protected by the federal government’s immunity. Second, Indian tribes such as the Pokagon Band of Potawatomi Indians with special statutes authorizing the secretary to take land into trust for them, usually as a result of a congressional recognition act or land claims settlement act, also are exempted.

The Supreme Court’s Feb. 24 decision in Carcieri v. Salazar is a significant defeat for the Narragansett Tribe, and perhaps for hundreds of other Indian tribes not federally recognized in 1934.

Interestingly, the final paragraph in Justice Clarence Thomas’ majority opinion – a major litigation-starter – appears to assume that the Carcieri case is limited to its facts, and therefore only applies to the Narragansett Tribe. The concurring opinions from Justices Stephen Breyer and David Souter, as well as Justice John Paul Stevens’ dissent, suggest that numerous other tribes that can demonstrate that they were “under federal jurisdiction” in 1934, even if “the Department did not know it at the time,” in Breyer’s words. The concurring and dissenting justices named several tribes that fit into this category, including the Stillaguamish Tribe, the Grand Traverse Band of Ottawa and Chippewa Indians, and the Mole Lake Tribe. In short, according to Justice Breyer, a tribe that could show it was party to a treaty with the United States, the beneficiary of a pre-1934 congressional appropriation, or enrollment with the Indian Office as of 1934. The Narragansett Tribe, according to the court, was under the jurisdiction of Rhode Island in 1934, not the Department of the Interior, and so they are not eligible.

These exceptions to the general Carcieri rule mean that Indian tribes in the twilight of the concurring opinions may be engaged in expensive litigation to prove that they were “under federal jurisdiction” in 1934. Such litigation may require the heavy expenditure of funds for expert witnesses, forcing some tribes to undergo the strange and humiliating process of earning a kind of federal recognition all over again. In the coming weeks, the Obama administration should take the lead in defining what “under federal jurisdiction” means to blunt the effect of the Supreme Court’s decision.

The Obama administration should take the lead in defining what “under federal jurisdiction” means to blunt the effect of the Supreme Court’s decision.

Regardless, now is the time for Indian country to test the waters in Washington D.C., to see if the Obama administration is serious about change and to press the Democratic-controlled Congress for a Carcieri “fix.” It might not take much legislation, just a quick rewording of the definition of Indian tribe in the IRA to remove the word “now.” The administration and Congress may be sympathetic, given that the Roberts Court seems to go out of its way to punish Indian tribes. A Carcieri “fix” pitched as merely reversing a bad Supreme Court decision would not work a major change on the federal-tribal-state relationship because it would merely be restoring the pre-Carcieri state of affairs that had existed for over seven decades.

For the Narragansett Tribe, this decision is yet another slap in the face to a tribe that has done nothing wrong but what it can to survive. For six justices, the Narragansetts did not pass the test of “federal jurisdiction,” a test that no one could have known in 1934 they would have been required to pass. Nothing could be more arbitrary and capricious.

Matthew L.M. Fletcher is associate professor at the Michigan State University College of Law and director of the Northern Plains Indian Law Center. He is an enrolled citizen of the Grand Traverse Band of Ottawa and Chippewa Indians.